From an environmental perspective, evaluating Neil Gorsuch as Trump’s SCOTUS nomination is difficult. There’s little to go on.
You can’t measure a man by his mother. Under President Reagan, she happens to have been the first woman to head the EPA (here). She was destined to ‘fall on the sword’ for shenanigans. But it’s worth noting that she consistently furthered the agenda of that administration (click to read). Namely, she limited the agency and eliminated clean air regulation (click for more).
The clearest sign of her son’s view on the environment is still ambiguous. His disposition toward a landmark case, Chevron v. Natural Resource Defense Council. (Click for best explanation of that case.) This resulted in regulatory agency’s interpretation of law being given precedence over courts. This remains true regardless of the politics of whatever president is appointing them. Using Gorsuch’s words, “an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day” (but that was pre-Trump). Now with two weeks of ‘draining the swamp’ behind us, you can understand how this cuts in two directions.
Have I already use the sword analogy in this post?
“Under Chevron the people aren’t just charged with awareness of and the duty to conform their conduct to the fairest reading of the law that a detached magistrate can muster. …they must always remain alert to the possibility that the agency will reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail.”
He’s in good company with many others in his call to “face this Behemoth.” Questioning this case law could just as well work in favor of environmental protection as against it. His colleague on the Federal Appellate Rules Committee, Neal K. Katyal, has this to say about him:
“With environmental protection, reproductive rights, privacy, executive power and the rights of criminal defendants (including the death penalty) on the court’s docket, the stakes are tremendous. I, for one, wish it were a Democrat choosing the next justice. But since that is not to be, one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws?
“I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law” (click to read).
Reputedly, Gorsuch is an outdoors person (read here). This sounds similar to Zinke. If this, his conservatism, and favor of Trump is any indication, we might expect similar things. Zinke, Trump, and his son seem to favor public lands but not environmental protection. For me and others, it’s difficult to understand how we can have one without the other.
A conservative-leaning US Supreme Court is not promising for environmental protection or climate action. As I suspected (here), he will not be friendly toward regulation (here). But it seems we can expect the decisions from a Justice Gorsuch to be carefully interpreted on the basis of constitutionality, law, and the burden it places on American liberty (here).
That should not be impossible for environmental advocacy.
True, advocating for our quality of life and a livable future will be difficult. After all, environmentalism died 13 years ago (caccording to them
). The whole green movement is apparently “the greatest threat to freedom and prosperity in the modern world” (caccording to him
). And we must resign ourselves to the fact that the immediate future is unstable. To quote the former counselor to Secretary of State under ‘W’, “…it will not get better. It will get worse…. The sooner Americans get used to these likelihoods, the better.” (here
But it is not impossible to make a case for environmental advocacy that’s constitutional, based on the rule of law, and reasonable. It’s just gone is the day in which we can muscle through regulation with little regard for how it affects local communities. Hey, I hate it too. That was a lot of fun. At least it was to those of us who lost our county to Mr. Peabody. But it was admittedly less so for those who lost the family farm to the snail darter.
So we have to reinvent ourselves. And if we can do so without the mistakes of our past, it may even be upheld in court.